June 04,
2013 "Information
Clearing House"
- Although whistleblower Bradley Manning pled guilty to 10
offenses that will garner him 20 years in custody, military
prosecutors are pursuing further charges – aiding the enemy and
violation of the Espionage Act – that carry life in prison.

The
court-martial of Bradley Manning, the most significant
whistleblower case since Daniel Ellsberg leaked the Pentagon
Papers, has begun. Although Manning pled guilty earlier this
year to 10 offenses that will garner him 20 years in
custody, military prosecutors insist on pursuing charges of
aiding the enemy and violation of the Espionage Act,
carrying life in prison.

The
Obama administration, which has prosecuted more
whistleblowers under the Espionage Act than all prior
presidencies combined, seeks to send a strong message to
would-be whistleblowers to keep their mouths shut.

A legal duty to report
war crimes

Manning is charged with crimes for sending hundreds of
thousands of classified files, documents and videos,
including the “Collateral Murder” video, the “Iraq War
Logs,” the “Afghan War Logs” and State Department cables to
Wikileaks. Many of the things he transmitted contain
evidence of war crimes.

The
“Collateral Murder” video depicts a US Apache attack
helicopter killing 12 civilians and wounding two children on
the ground in Baghdad in 2007. The helicopter then fired on
and killed the people trying to rescue the wounded. Finally,
a US tank drove over one of the bodies, cutting the man in
half. These acts constitute three separate war crimes.

Manning fulfilled his legal duty to report war crimes. He
complied with his legal duty to obey lawful orders but also
his legal duty to disobey unlawful orders.

Section 499 of the Army Field Manual states, “Every
violation of the law of war is a war crime.” The law of war
is contained in the Geneva Conventions.

Article 85 of the First Protocol to the Geneva Conventions
describes making the civilian population or individual
civilians the object of attack as a grave breach. The firing
on and killing of civilians shown in the “Collateral Murder”
video violated this provision of Geneva.

Common
Article 3 of the Geneva Conventions requires that the
wounded be collected and cared for. Article 17 of the First
Protocol states that the civilian population “shall be
permitted, even on their own initiative, to collect and care
for the wounded.” That article also says, “No one shall be
harmed . . . for such humanitarian acts.” The firing on
rescuers portrayed in the “Collateral Murder” video violates
these provisions of Geneva.

Finally, Section 27-10 of the Army Field Manual states that
“maltreatment of dead bodies” is a war crime. When the Army
jeep drove over the dead body, it violated this provision.

Enshrined in the US Army Subject Schedule No. 27-1 is “the
obligation to report all violations of the law of war.” At
his guilty plea hearing, Manning explained that he had gone
to his chain of command and asked them to investigate the
“Collateral Murder” video and other “war porn,” but his
superiors refused. “I was disturbed by the response to
injured children,” Manning stated. He was also bothered by
the soldiers depicted in the video who “seemed to not value
human life by referring to [their targets] as ‘dead
bastards.’ ”

The
Uniform Code of Military Justice sets forth the duty of a
service member to obey lawful orders. But that duty includes
the concomitant duty to disobey unlawful orders. An order
not to reveal classified information that contains evidence
of war crimes would be an unlawful order. Manning had a
legal duty to reveal the commission of war crimes.

No reason to believe
leak could harm US or aid foreign power

To
prove Manning violated the Espionage Act, prosecutors must
prove beyond a reasonable doubt that he had “reason to
believe” the files could be used to harm the United States
or aid a foreign power. When he pled guilty, Manning stated,
“I believed if the public, particularly the American public,
could see this, it could spark a debate on the military and
our foreign policy in general as it applied to Iraq and
Afghanistan.” He added, “It might cause society to
reconsider the need to engage in counterterrorism while
ignoring the situation of the people we engaged with every
day.” These are hardly the words of a man who thought his
actions could harm the United States or help a foreign
power. To the contrary. Manning will be permitted to
introduce evidence about his belief that certain documents
would not cause harm to national security if publicly
released. It was after Wikileaks published evidence of the
commission of war crimes against the Iraqi people that Iraq
refused to grant criminal and civil immunity to US troops if
their stay in Iraq was prolonged, causing Obama to withdraw
them from Iraq. This saved myriad American and Iraqi lives.

Making an example:
cruel, inhuman and degrading treatment

Manning was 22 years old when he courageously committed the
acts for which he stands criminally accused. For the first
11 months of his confinement, he was held in solitary
confinement and subjected to humiliating forced nudity
during inspection. In fact, Juan Mendez, UN special
rapporteur on torture, characterized the treatment of
Manning as cruel, inhuman and degrading. He said, “I
conclude that the 11 months under conditions of solitary
confinement (regardless of the name given to his regime by
the prison authorities) constitutes, at a minimum, cruel,
inhuman and degrading treatment in violation of article 16
of the Convention against Torture. If the effects in regards
to pain and suffering inflicted on Manning were more severe,
they could constitute torture.” Mendez could not
conclusively say Manning’s treatment amounted to torture
because he was denied permission to visit Manning under
acceptable circumstances. Mendez also concluded that,
“Imposing seriously punitive conditions of detention on
someone who has not been found guilty of any crime is a
violation of his right to physical and psychological
integrity as well as of his presumption of innocence.”

Obama
himself has also violated Manning’s presumption of
innocence, saying two years ago that Manning “broke the
law.” But although the Constitution requires the President
to enforce the laws, Obama refuses to allow the officials
and lawyers from the Bush administration who sanctioned and
carried out a regime of torture – which constitutes a war
crime under Geneva – to be held legally accountable.
Apparently if Bradley Manning had committed war crimes,
instead of exposing them, he would be a free man, instead of
facing life in prison for his heroic deeds.

Marjorie
Cohn, a professor at
Thomas Jefferson School of Law, former president of the
National Lawyers Guild and deputy secretary general of
the International Association of Democratic Lawyers, is
Truthout’s Guantanamo/human rights reporter and analyst.
Her most recent book is The United States and Torture:
Interrogation, Incarceration, and Abuse. She is working
on a book about drones and targeted killing.

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